Product Liability and 3D Printing

I’m going to do some posts on 3D printing this week, some of which relate to the paper that Deven and I are writing. This one deals with product liability.

As I’ve said before (to great consternation), state product liability law is basically a dead field. In large part, this is because of federal preemption. But the growth of 3D printing, like other technological changes, may bring the common law back into vogue because Congress will not get its act together quickly to regulate this field.

Here’s the basic issue. In a world of 3D printing, anyone could be a manufacturer. Let’s say I make something from scratch in my 3D printer at home and that product (a toy, a cookie, a tool, a spare part) injures someone. Should we apply the same principles of product liability to that person that we would to a firm? Yes and no, I think. We probably won’t require individuals to put warnings on what they make, but we may say that a design or manufacturing defect should lead to strict liability. Or would we say that a negligence standard should apply to homemade products?

Now try this one on for size. I upload a file that will make some something to a website. Someone downloads my file, makes the item, and this injures someone. Is the author of the file on the hook for a design defect claim? What about the website? While this could depend on a number of factors, courts will again need to think hard about how product liability rules should be adapted to this ecosystem.

We’re not there yet, but it’s coming.

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Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

I don’t think it’s that much of a revolution; Regulation of firearms is already severely limited by the existence of a black market, bolstered both by a criminal class who use guns, and a population who don’t regard the regulations as legitimate, and hence feel no particular obligation to comply with them. Widespread ownership of home shop equipment capable of manufacturing superior firearms from scratch, and hobby reloading are a factor, too.

Perhaps 3d printing is more important for the way it shatters the illusion that firearms can be effectively regulated, than for actually impeding the regulation.

Okay, I stand (partially) corrected. But the issue here is where specs are publicly available. Buying a gun and surreptitiously copying it could and should never lead to liability for the gun manufacturer. Even in a world where everyone could make such a copy, a liability rule here would simple grind human innovation to a halt: “anything you invent we will hold you liable for.”

So unless gun manufacturers are releasing their specs, the issue is entirely different.

Brett: Personally, I agree regulation is futile, but the point is, I think, to make us feel better about ourselves. I think that is a good enough reason to support a law, and I’m happy with many of the entirely ineffective laws we have, because people need to be kept optimistic.

I’m not game on the extreme sentiments applied here. Regulation is not futile. It will be applied differently as things changed. How this will work remains to be seen when the things have changed and a new path is taken.

“Brett: Personally, I agree regulation is futile, but the point is, I think, to make us feel better about ourselves. I think that is a good enough reason to support a law, and I’m happy with many of the entirely ineffective laws we have, because people need to be kept optimistic.”

“What you mean ‘we’, white man?” I’m the regulated here, not the regulator, and I assure you having my civil liberties attacked doesn’t make me feel either better about myself, or optimistic.